WASHINGTON – Congress is looking into providing additional legal protections to staff members who face reprisals for their work holding executive branch agencies accountable.
The Senate Subcommittee on Crime and Terrorism held a hearing on what Sen. Lindsey Graham (R-S.C.), the panel chairman, described as “a very sensitive but real world problem” regarding legitimate congressional oversight functions that result in objections from federal agencies that could lead to criminal referrals.
Graham said Senate staff members frequently “are going to ask hard questions of powerful people to make sure they are accountable.” The subcommittee wants to make sure those staff members asking the questions “are not subject to reprisal in a way that would chill oversight.”
“There’s a natural tension between the executive branch being able to do their job and congressional oversight,” Graham said.
The issue initially arose in 2014 when it was revealed that the Federal Bureau of Investigation was looking into claims that Senate Select Committee on Intelligence staff members removed materials from a Central Intelligence Agency facility in Northern Virginia during the course of a four-year probe into interrogation techniques used overseas by the agency against suspected terrorists.
The CIA issued a criminal referral over the incident to the Department of Justice, which subsequently handed it over to the FBI.
Sen. Sheldon Whitehouse (D-R.I.), the subcommittee’s ranking member who served on the Intelligence Committee when the controversy exploded, noted that committee staff members uncovered pertinent documents that the CIA apparently had not intended to make available for review.
“These documents contained an internal CIA assessment of the interrogation program known as the ‘Panetta Review,’ an assessment which called into question many of the CIA’s statements to Congress about the scope and brutality of the program, and whose inadvertent release to committee investigators caused considerable alarm within the CIA,” Whitehouse said.
The CIA responded to the committee’s acquisition by accessing, without Senate authorization, the Senate computer network that was set up exclusively for the committee’s use. They searched the network and reviewed the email of Senate staff. It was in February 2014 that the CIA’s acting general counsel submitted the criminal referral to the Justice Department, asserting that committee staff violated the federal hacking statute by accessing the Panetta Review documents.
More than five months passed before the Department of Justice cleared committee staff of any wrongdoing.
Whitehouse said the events raised several separation-of-powers questions. The criminal referral “had a significant effect on the committee staff and their ability to perform legislative duties, even though it was ultimately determined to be without merit.”
The incident, Whitehouse said, raised constitutional questions about the sort of safeguards that should be implemented “to protect ongoing congressional investigations against executive interference by abuse of the criminal referral process.”
“One could imagine a scenario in which an executive official, who is the subject of a tough committee investigation, launches a criminal referral against committee staff, and a friendly attorney general then sits on it, or slow-walks it, to protect his colleague and the administration from embarrassing disclosures,” he said. “That appears to be a scenario against which we have no adequate present safeguards.”
Bill Pittard, a partner in the Washington law firm of Kaiser Dillon PLLC who formerly worked in the Office of General Counsel for the House, told lawmakers that that there exists an “inherent vulnerability of legislative branch staff.”
Faced with an executive branch charge, a committee staffer could find “there likely will be no end point on the horizon, as the executive branch only rarely provides the satisfaction, and peace of mind, of formally closing an investigation,” Pittard said. “In other words, legislative branch oversight staff face incredible pressure to conform their behavior to that preferred by the executive branch.”
Pittard suggested the subcommittee mull several ideas, including passing legislation requiring that investigations and prosecutions of legislative branch officials, for official conduct, be directed by an independent counsel. He also said any criminal process should be reviewed and approved by an internal Department of Justice review board and receive a personal go-ahead from the attorney general.
Scott Horton, an adjunct professor at Yale University, maintained that Article I, Section 6, clause 1 of the Constitution, better known as the Debate Clause, provides that “for any speech or debate in either House, (Senators and Representatives) shall not be questioned in any other place.”
The Debate Clause, Horton said, was “never intended to furnish complete immunity from accountability for wrongful or unlawful conduct – only immunity from accountability by the Executive.”
In other words, under the Constitution, determination of any wrongdoing is in the hands of the legislative branch, not the executive branch.
“The language ‘in any other place’ suggests that with respect to matters within the scope of the Debate Clause, it is the Congress – each house for itself – that must decide whether accountability is necessary and must mete it out when appropriate,” Horton said. “Indeed, it may be argued that access to classified information and the survival of the Debate Clause privileges themselves depend on Congress taking the point of self-policing seriously. This is equally the case for members and staff. When staff act under the direction of a member, however, it is clearly the member who is generally accountable.”
Jeff Smith, another Washington attorney and former CIA general counsel under President Bill Clinton, reminded the subcommittee that “misuse of the criminal process can occur on both ends of Pennsylvania Avenue.”
“When I was general counsel of CIA, a House committee counsel from a committee that had no oversight jurisdiction over the agency angrily threatened me with contempt of Congress and a referral to the Justice Department for prosecution because we refused to provide her with documents she believed she needed,” Smith said. “I told her we would be happy to work with the House Permanent Select Committee on Intelligence to find a way for members of her committee to get what they needed, but we were not going to give it to her. We eventually worked this out and I didn’t get held in contempt, but it was not a pleasant experience.”
“Threats of prosecution have no place in resolving disputes between the Congress and the executive branch,” Smith said.